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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MEMC ELECTRONIC MATERIALS, : 

 et al., : 

 : 

 Plaintiffs, : Case No. 2:12-CV-344 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

KARTHIK BALAKRISHNAN, : Magistrate Judge Norah McCann 

 : King 

 : 

 Defendant. : 

DISCOVERY OPINION AND ORDER

I. INTRODUCTION 

 Plaintiffs MEMC Electronic Materials, Inc. and MEMC Pasadena, Inc. (collectively 

referred to as “MEMC” or “Plaintiffs”) filed a Complaint and Application for a Temporary 

Restraining Order against Defendant Karthik Balakrishnan (“Balakrishnan” or “Defendant”) on 

April 18, 2012. (Doc. 1, 3.) In the Application for a Temporary Restraining Order, MEMC 

sought to enjoin Balakrishnan from (1) violating his contractual obligations not to engage in 

certain competitive activities, and (2) using or disclosing MEMC’s confidential, proprietary, and 

trade secret information, as set forth in an agreement Balakrishnan and MEMC entered into on or 

around August 10, 2009, in connection with his employment at MEMC. Balakrishnan formerly 

served as a Director of Polysilicon Product Technology at MEMC in Pasadena, Texas, and now 

works Iosil Energy Corporation, allegedly a competitor of MEMC, as its Senior Vice President 

of Manufacturing and Engineering in Groveport, Ohio. In the Complaint, MEMC alleges that 

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Balakrishnan left without formally informing MEMC of his planned departure, as well as under 

suspicious circumstances. 

 After holding a Local Rule 65.1 Conference where both parties had the opportunity to be 

heard, this Court granted Plaintiffs’ Application for a Temporary Restraining Order, set bond, 

and set a date for the preliminary injunction hearing. (Doc. 8.) Balakrishnan thereafter filed an 

Unopposed Motion to Continue Preliminary Injunction Hearing and Extend Temporary 

Restraining Order, (Doc. 17), which this Court granted on April 30, 2012, (Doc. 19). The 

preliminary injunction hearing is set for May 30, 2012. 

 This matter is before the Court on Balakrishnan’s Motion for an Order to Compel 

Plaintiffs’ Deposition in Columbus, Ohio, (“Motion to Compel”). (Doc. 23.) During a 

telephonic status conference that took place on May 3, 2012, the parties represented to the Court 

that they were unable to resolve a discovery dispute related to the location of two depositions of 

MEMC witnesses who will testify at the preliminary injunction hearing. Because discovery is 

expedited in this case, (Doc. 10), the Court ordered Balakrishnan to submit support for his 

position by close of business that day, May 3, 2012 (which he did in the Motion to Compel), and 

Plaintiffs to do the same by close of business the next day, May 4, 2012. 

 According to Balakrishnan’s Motion to Compel, the first witness at issue, Steve 

Wachnowsky, is the “Vice President and General Manager Polysilicon” at MEMC Electronic 

Material, Inc. (Doc. 1.) Wachnowsky works and resides in St. Peters, Missouri, which is in the 

St. Louis area. The second witness is a Federal Rule of Civil Procedure (“FRCP”) 30(b)(6) 

witness who will testify as to the engineering and process technology aspects of Plaintiffs’ case, 

and who Plaintiffs indicated to Balakrishnan is located in either St. Louis, Missouri or Houston, 

Texas. In their Memorandum in Opposition to Defendant’s Motion to Compel Deposition of 

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Plaintiffs’ Witnesses in Ohio, (“Memo in Opposition”), Plaintiffs indicate that they now 

anticipate the second witness will be Milind Kulkarni, who presently works at MEMC’s 

headquarters in St. Louis, where he also resides. MEMC also explains that Kulkarni is scheduled 

to move to India on May 19, 2012. (Doc. 24.) 

 This Court has reviewed the parties’ briefs, and for the reasons set forth below, hereby 

DENIES Balakrishnan’s Motion to Compel. 

II. LAW AND ANALYSIS 

 FRCP 30(b)(1) states in pertinent part: “A party who wants to depose a person by oral 

questions must give reasonable written notice to every other party. The notice must state the time 

and place of the deposition and, if known, the deponent's name and address.” The default rule, 

therefore, is that the examining party “may set the place for the deposition of another party 

wherever he or she wishes subject to the power of the court to grant a protective order under 

Rule 26(c)(1)(B) designating a difference place.” Charles Alan Wright, Arthur R. Miller, Mary 

Kay Kane, & Richard L. Marcus, Federal Practice and Procedure § 2112 (3d ed. 2012). 

 Although the issue in this case is framed in Defendant’s Motion to Compel, because 

FRCP 30(b)(1) permits the party noticing the deposition to initially select the place of the 

deposition, as Balakrishnan calls attention to, it is Plaintiffs who are actually seeking protection 

from Balakrishnan’s location selection. (Doc. 23); see The Scooter Store, Inc. v. Spinlife.com, 

LLC, No. 2:10-cv-18, 2011 WL 2118765, at *1 (S.D. Ohio May 25, 2011) (same procedural 

posture). To do so, MEMC must demonstrate that good cause exists under FRCP 26(c)(1), 

namely, to protect them from “annoyance, embarrassment, oppression, or undue burden or 

expense.” Fed. R. Civ. P. 26(b)(c)(1). Moreover, “[a] motion for a protective order not to have a 

deposition at a particular site, or to compel deposition in a particular location, is considered by 

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reviewing three factors of the cost, convenience, and litigation efficiency of the designated 

locations.” The Scooter Store, 2011 WL 2118765, at *2 (citing Sloniger v. Deja, No. 09-CV858S, 2010 WL 5343184, at *5 (W.D.N.Y. Dec. 20, 2010)); see Brockway v. Veterans Admin. 

Healthcare Sys., No. 3:10-cv-719, 2011 WL 1459592, at *5 (D. Conn. Apr. 15, 2011); Buzzeo v. 

Board of Educ., Hempstead, 178 F.R.D. 390, 393 (E.D.N.Y. 1998).

 Both Wachnowsky and the FRCP 30(b)(6) witness are being deposed in their capacity as 

corporate officers or representatives of MEMC. (See Doc. 21 (“Defendant . . . will take the 

deposition of Steve Wachnowsky, Vice President/General Manager at MEMC Electronic 

Materials, Inc., in his capacity as an officer, director, and/or managing agent for Plaintiffs”), 22 

(“the undersigned will take the deposition, . . . of the representative(s) of Plaintiffs’ most 

knowledgeable about the following topics [related to MEMC]”.) As a result, in addition to the 

factors listed above, this Court must also consider the presumption that the deposition of a 

corporation by its agents and officers should ordinarily be taken at its principal place of business. 

The Scooter Store, 2011 WL 2118765, at *2 (citations omitted); Thomas v. Int’l Bus. Mach., 48 

F.3d 478, 483 (10th Cir. 1995) (explaining that ordinarily, the deposition of a corporation by its 

agents should be done at its principal place of business). “This customary treatment is subject to 

modification, however, when justice requires.” Charles Alan Wright, Arthur R. Miller, Mary 

Kay Kane, & Richard L. Marcus, Federal Practice and Procedure § 2112 (3d ed. 2012). District 

courts have great discretion in designating the location of taking a deposition. Thompson v. Sun 

Oil Co., 523 F.2d 647, 648 (8th Cir. 1975) (per curiam); Tomingas v. Douglas Aircraft Co., 45 

F.R.D. 94, 97 (S.D.N.Y. 1968). 

 Therefore, mindful of these default rules, Plaintiffs’ burden, and the fact that district 

courts have great discretion to determine the location of a deposition, this Court will now 

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consider the three relevant factors: cost, convenience, and litigation efficiency. See The Scooter 

Store, 2011 WL 2118765, at *2. 

A. Cost

 Balakrishnan argues that the cost factor should weigh in his favor because he is an 

individual being forced to defend this litigation with his own funds against MEMC, whereas 

MEMC is a global leader in its field with significant capital and assets. Plaintiffs rebut that 

Balakrishnan has not alleged that he will be unable to bear the costs should the deposition occur 

outside of Columbus. MEMC also points out that it would be more expensive to send its counsel 

and two witness to Columbus for a deposition than it would be for Defendant’s counsel to travel 

to St. Louis.1

 Neither party has alleged that it will be unable to bear the costs associated with these two 

depositions. This Court is persuaded that the cost factor weighs in favor of MEMC, as it will be 

less expensive to send one or two attorneys to St. Louis to take depositions, than it will be to 

send one or two attorneys, and two witnesses, to Columbus to be deposed. 

B. Convenience 

 Balakrishnan argues that asking the corporate officers and representatives of MEMC to 

come to Columbus creates no undue inconvenience because the depositions will be limited to 

one day of seven hours, and Columbus is not a remote location from either Missouri or Texas. 

Moreover, as corporate officers or representatives, these witnesses are most likely familiar with 

business travel and have sufficient means to maintain contact with their workplace while away. 

                                                           

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 In his Motion to Compel, Balakrishnan noted that MEMC’s local Ohio counsel, Roetzel & Andress 

LPA, was trial counsel and would, therefore, be taking the depositions of the witnesses. MEMC’s Memo 

in Opposition clarifies that its trial counsel is Bryan Cave LLP, located in St. Louis, who will be taking all 

of the deposition. 

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MEMC argues that while it would not be cumbersome for counsel for Balakrishnan to travel to 

St. Louis to take the depositions, it would be inconvenient if Defendant were allowed to summon 

any number of MEMC’s employees to Columbus simply through notice of deposition. MEMC 

also points out that Kulkarni, the witness MEMC anticipates identifying as its FRCP 30(b)(6) 

witness, is scheduled to move to India on May 19, 2012, and, as a result, traveling to Columbus 

for a deposition shortly prior to his international move would be incredibly inconvenient. 

 Factors relevant for this Court to consider when conducting the convenience analysis 

include: “any hardship to counsel, the residence of deponents, and the extent to which the 

witness’ affair might be disrupted.” The Scooter Store, 2011 WL 2118765, at *2 (citing Devlin 

v. Transp. Commc’n Int’l Union, No. 95-cv-0752, 2000 WL 28173, at *3 (S.D.N.Y. Jan. 14, 

2000)). Again, it is more convenient to send one or two attorneys to St. Louis to take 

depositions, than it is to send one or two attorneys, and two witnesses, to Columbus to be 

deposed. Furthermore, both witnesses reside and work in the St. Louis area, and MEMC has 

indicated that Kulkarni’s move to India would be disrupted if he were required to travel to 

Columbus shortly prior. This Court also notes that, to the extent the parties need to access any 

corporate documents during the depositions, it may be easier to access such documents in 

Missouri, where MEMC Electronic Materials, Inc.’s headquarters is located. The convenience 

factor, thus, weighs in favor of having the depositions in St. Louis. 

C. Litigation Efficiency 

 Finally, Balakrishnan argues that litigation efficiency weighs in his favor because 

Missouri and Texas are in different time zones than Ohio, which could affect the ability of the 

parties to involve the Court in deposition disputes as they happen. Plaintiffs rebut that a one 

hour time difference is insignificant, and the parties can certainly contact the Court via telephone 

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if necessary. The Court agrees that the one-hour time difference is insignificant, and will be 

available by phone if necessary. 

 All of the factors weigh in favor of having the depositions in St. Louis. The presumption 

that depositions of a corporation by its agents and officers should ordinarily be taken at its 

principal place of business reinforces this Court’s conclusion. See The Scooter Store, 2011 WL 

2118765, at *2 (citations omitted); Thomas, 48 F.3d at 483. 

III. CONCLUSION 

 For the reasons stated above, Balakrishnan’s Motion to Compel is DENIED. 

 IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Judge 

Dated: May 8, 2012 

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